The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983. Pending before the court are: 1) plaintiff's motion to join cases and appoint counsel, filed on 4/11/08; 2) plaintiff's motion to file a third amended complaint, filed on 4/25/08, to which defendants have filed their opposition; 3) plaintiff's motion to compel discovery responses and for sanctions, filed on 5/02/08, opposed by defendants; 4) plaintiff's request for leave to serve additional interrogatories on defendants, filed on 9/03/08, to which defendants filed an opposition; 5) plaintiff's request for a modification of the scheduling order to continue the discovery cutoff date, filed on 11/07/08, which defendants oppose, and which this court hereby denies. Finally, on 11/25/08, plaintiff filed a motion for a temporary restraining order (TRO), contending that defendants are violating food preparation health and safety standards, and asking for immediate injunctive relief. The court will not address that motion herein but will address it in the concurrently filed scheduling order, whereby the undersigned has set this matter for trial at the earliest available date. The dispositive motion deadline remains, as set forth in the Order, filed on June 13, 2008 (# 79), January 19, 2009.
In his motion "to join cases," plaintiff asks that the court join CIV-S-07-2385 and CIV-S 07-1419 to this action and allow this case to proceed as a class action with appointed counsel. Plaintiff has not made an appropriate motion pursuant to Fed. R. Civ. P. 23, and in any event, the undersigned has related (although not consolidated) the two cases identified in his motion to this action; plaintiff's motion "to join cases," will be denied as both inapposite and moot. See Order, filed on 6/06/08. Plaintiff's previous requests for appointment of counsel with respect to the instant action have been denied, and for the same reason, the court denies this latest request. See Order, filed on 3/26/08. To the extent that plaintiff seeks counsel for a putative class action, the motion is denied as inapposite.
Motion to File a Third Amended Complaint
This action, filed more than two years ago, on 9/11/06, is now proceeding on a second amended complaint, filed on 4/27/07, as modified by the Order, filed on 8/22/07, against twelve defendants: Bernardino (which plaintiff erroneously named Raymond), Arndt (previously misspelled as "Arnt"), Walker, Malfi, Leiber (previously misspelled as "Lieber"), Kelly, Haythorne, Ruller (previously misspelled as Rueller), Hague, Rodriguez, Baughman, Smith, all of whom have answered. See Docket # 33 and # 41. The gravamen of plaintiff's claims is that defendants have violated his Eighth Amendment rights by their alleged deliberate indifference to health and safety standards for food preparation and service at California State Prison (CSP)-Sacramento. All defendants besides Alice Smith filed their answer on 11/20/07; defendant Smith's answer was filed on 12/28/07.
Plaintiff subsequently seeks leave to proceed upon a third amended complaint; however, in submitting a proposed third amended complaint, of some 221 pages in length, including attached exhibits, plaintiff fails to provide an adequate motion for leave to amend setting forth the grounds for his motion, instead merely stating that he moves for leave to amend, cursorily referencing Fed. R. Civ. P. 15(a), 19(a) and Local Rule 15-220, and on the basis that the court "should grant leave freely to amend a complaint."
Once an answer has been filed, a party may amend a pleading only by leave of court or by written consent of the adverse party. See Fed. R. Civ. P. 15(a). As noted, the defendants have previously filed their answers. Plaintiff has filed neither a sufficient motion to amend, setting forth an adequate basis within a separate motion, for which the court could consider a further amended complaint, nor a stipulation to amend the complaint signed by all parties. For this, as well as the following reasons, plaintiff's proposed third amended complaint will be stricken and this action will continue to proceed on the second amended complaint.
As defendants note in their opposition, plaintiff's proposed third amended complaint names six additional defendants, along with new facts. Opposition (Opp.), p. 2. The motion, such as it is, and proposed third amended complaint was filed a year after the second amended complaint. Defendants attribute the delay to plaintiff's apparent efforts to add facts included in two other inmate suits for which plaintiff sought to proceed herein as a class action (see above & footnote 1). Id. The court's review of the now-related cases demonstrates that plaintiff does reference some allegations contained within those cases. Defendants also contend that the proposed third amended complaint would work to the substantial prejudice of defendants insofar as extensive additional discovery would be necessitated and, defendants aver, they have already been responding to plaintiff's "voluminous requests" propounded to the existing twelve defendants. Id. Defendants also argue that as to four of the proposed additional defendants, defendants Duc, Jochim, McGinnis and Goldman,*fn1 plaintiff was aware of the facts as to each of them when the second amended complaint was filed, and as to the two remaining defendants, O'Brian and Lebeck, as plaintiff's allegations as to them stem from events in January of 2008, such claims could not have been exhausted at the time plaintiff filed this complaint. Opp., p. 3. Plaintiff did not elect to reply to defendants' opposition.
As to granting leave to amend at the point at which pleadings may only be granted by leave of court, Fed. R. Civ. P. 15(a)(2) states that "[t]he court should freely give leave when justice so requires." Nevertheless "whether to grant leave to amend.... remains within the discretion of the district court...." Manzarek v. St. Paul Fire and Marine Ins. Co., 519 F.3d 1025, 1034 (9th Cir. 2008). "Four factors are commonly used to determine the propriety of a motion for leave to amend. These are: bad faith, undue delay, prejudice to the opposing party, and futility of amendment." Ditto v. McCurdy, 510 F.3d 1070, 1079 (9th Cir. 2007), quoting Roth v. Garcia Marquez, 942 F.2d 617, 628 (9th Cir.1991) (citing Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227 (1962)). It is an abuse of discretion to deny leave to amend "without any justifying reason." Forman, supra.
In this case, the court finds that to the extent that plaintiff seeks to piggyback allegations arising from the now-related Campbell and Williams' cases, and failed to incorporate timely factual allegations against newly named defendants, apparently known to him at the time of the filing of the second amended complaint, he acts either in bad faith or with undue delay in seeking further leave to amend. To the extent that plaintiff seeks leave to amend with additional allegations and newly named defendants against whom his claims could not have been timely administratively exhausted, his amendments would appear to be futile. McKinney v. Carey, 311 F.3d 1198, 1200 (9th Cir. 2002) (requiring administrative exhaustion prior to filing suit); Schlosser v. Potter, 248 Fed. Appx. 812, 2007 WL 27050288 *5 (9th Cir. 2007) unpublished (even where other factors favored plaintiff, "an amendment would have been futile because... [plaintiff] failed to exhaust his administrative remedies"].*fn2 In addition, there is little doubt that adding the proposed allegations and additional defendants would work to the prejudice of the defendants, in light of the already significant amount of discovery requests (see below), plaintiff has propounded upon the present defendants to which they have responded. Finally, plaintiff simply does not offer a reasonable justification for requiring that this two-year-old case should basically be re-commenced in order to serve additional defendants and proceed with discovery anew. For these reasons, the court recommends that plaintiff's motion to file a third amended complaint be denied.
Plaintiff brings a motion to compel discovery responses, and for sanctions, contending that defendants' had failed to produce discovery responses as of April 25, 2008, even though defendants had been granted an extension of time to do so. Motion to Compel (MTC), p. 3, citing Order, filed on 3/13/08 (docket # 59). In an opposition, filed on 5/19/08, defendants maintain that their responses to plaintiff's first set of interrogatories, production requests and admission requests were not due until June 9, 2008, and arguing that the motion to compel should be denied as premature. Defendants concede that their discovery responses were due as of April 25, 2008, but point to the court's order, filed on April 29, 2008, granting defendants an additional 45 days to file their responses. Docket # 67. Defendants are correct as far as they go and the court would deny the motion as premature on that basis; however, in a filing, dated July 14, 2008 (# 83), plaintiff complains that he had received discovery responses on July 2, 2008, in which only objections were interposed, noting that the court in its final June 27, 2008, order (# 82) granting defendants a one-week further extension to respond to plaintiff's discovery requests had cautioned defendants "to provide substantive responses, assuming the reasonableness of plaintiff's requests, and not to simply interpose objections." To his follow-up letter, plaintiff attaches only the first two pages of defendants' Malfi's and Arndt's discovery responses in which, indeed, only objections are posited.
In response, defendants' counsel, on July 15, 2008 (#84), submitted a declaration, stating that, with the exception of defendant Malfi, the eleven other defendants have served substantive responses, except to the extent that defendants perceived the sought-for information or documents to be privileged or otherwise protected from disclosure. Counsel for defendants averred that, in addition to answering plaintiff's interrogatories and requests for admissions, plaintiff had also been provided with 29 documents, totaling over 200 pages, in response to production requests. Defendants' counsel declares that, despite difficulties, she was able to obtain verifications for ten of the twelve defendants by the June 30, 2008, deadline, and sought only to preserve the objections for defendants Arndt and Malfi, whom she had not been able to reach, due to defendant Malfi's retirement and defendant Arndt's being on a leave of absence. In her declaration, counsel states that she was finally able to contact defendant Arndt on July 2, 2008, and receive his verification, after which she served ...